Obtaining permits was never within the scope of the work delegated to Crew. Arguably, obtaining permits also was not noncontract work,<\/i> given the clarity of the evidence that neither Petitioners nor anyone else ever intended to pull any. But even as noncontract work, the failure to pull permits here \u201cimposed too little a degree of control over\u201d how Crew completed the tenant improvement process, or how PCF completed the electrical work, entrusted to each of them. The evidence here establishes that Crew \u201capproach[ed]\u201d the work \u201cthe exact same way as [it] would with a permit.\u201d The evidence also shows PCF and its employees had \u201cample freedom\u201d to complete the work entrusted to them, even while accommodating any possibly noncode-compliant electrical components by, for example, investigating the site, completing the lockout\/tagout protocol and keeping it in place throughout the work, and hot-sticking and metering the wiring. While Johnson notes that PRI controlled access to the building\u2019s electrical rooms, he does not explain how that fact affects these available safety measures.<\/p>\n<\/blockquote>\n
In short, neither Crew nor PCF was contractually required to obtain permits, nor did PRI or CBRE reserve that responsibility on to themselves, but the lack of delegation over obtaining a permits \u201cimposed too little a degree of control\u201d in any event, since Johnson could have verified whether the lockout\/tagout process was in place and could have used his hot stick to test the wire.<\/p>\n
If this makes you feel a little uncomfortable, it did so as well, for Justice Kelety of the 4th District Court of Appeal<\/p>\n
Justice Kelety, focusing on the direction of PRI and CBRE that permits would not be obtained, dissented stating:<\/p>\n
\nFrom the outset, the majority characterizes the decision to proceed without permits as a mutual agreement <\/i>between Petitioners and Crew. The majority then concludes, based at least in part on this characterization, that \u201cthe permitting process was never within the scope of the contracted work.\u201d However, when viewed in a light most favorable to Johnson, the evidence supports a conclusion that there was no such agreement, and, further, but for CBRE\u2019s instruction, the permitting would have been within the scope of the work.<\/p>\n
First, as to the existence of some kind of \u201cagreement\u201d between the parties, when asked at oral argument, counsel for Petitioners conceded that \u201cPetitioners made the decision <\/i>not to obtain permits\u201d and instructed Crew not to pursue the permit process. Johnson presented evidence confirming that concession. Crew employee Courtney Ciurej testified that it was typical for CBRE to make the decision whether or not to seek permits, and in this case, they decided not to, to save time and money. Crew had other projects with Petitioners, including projects underway in the same building, and this was the regular course of dealing between CBRE and Crew. CBRE acknowledged that if the contractors were \u201ccaught\u201d without the required permits, CBRE and PRI would accept responsibility for any fines or delays resulting from CBRE\u2019s instruction to the contractors to forgo the permit process, showing that they understood the ramifications of that decision.<\/p>\n
Second, it is my view that the obligation to obtain permits would have been included within the scope of the contracted work in the absence of CBRE\u2019s instruction to forgo them. In their motion for summary judgment, Petitioners and their expert emphasized that they could not be responsible for any injuries resulting from the lack of permits because the underlying contract required Crew and PCF to obtain all necessary permits. It is true that the written contract included the permitting requirement, but the contract was not executed until after<\/i> the contractors had been hired, after<\/i> the work had begun without permits, and after<\/i> Johnson had been electrocuted; and, the contract made no reference to CBRE\u2019s instruction to the contractors to forgo the permitting process. Under the circumstances, it is hard to see the final contract as anything more than post hoc <\/i>window dressing. Nonetheless, the inclusion of a permitting requirement in the final contract contradicts the majority\u2019s conclusion that the legally required permits were somehow outside the scope of the contracted work.<\/p>\n
Nor is it apparent that CBRE\u2019s instruction to forgo the requisite permitting had no impact on the contractor\u2019s performance of the work. Johnson alleged that by choosing to disregard the mandatory permitting process, Petitioners saved approximately $30,000, primarily by avoiding inspections and the need for engineering or \u201cas-built\u201d drawings of the existing electrical structure. Had those drawing been done, they would have shown changes to circuitry and could have helped identify any unexpected underlying conditions. Petitioners did not truly dispute these allegations. Rather, they again attempt to place the blame on Crew, stating that they \u201ccontractually obligated Crew \u2026 and Crew \u2026 contractually obligated PCF \u2026 to obtain whatever permits were required by law to do the work.\u201d At a minimum, there is a disputed issue of fact regarding the impact of Petitioners\u2019 direction not to obtain the requisite permits.<\/p>\n
Beyond that, I reject the notion that simply deciding and instructing that the project proceed without permits was all that PRI and CBRE needed to do to remove the permitting process from the scope of work, thereby absolving themselves of any related liability. By endorsing that notion, the majority opinion essentially leaves building owners and property managers like PRI and CBRE free to dictate whether obtaining a legally required permit is within the scope of work for any given contract. This cannot be the case. The parties and the majority agree that the contracted work required a permit. It was not a choice that the parties could simply decide to exclude. It was a legally required step in completing the contracted work, the purpose of which is to \u201censure projects comply with the minimum standards that help safeguard life or limb, public health, property and welfare.\u201d Petitioners do not dispute this.<\/p>\n
For the same reasons, I also disagree with the majority\u2019s conclusion that we need not consider the policy implication of allowing Privette<\/i> to shield a hirer from liability in this circumstance simply because the hirer may still be liable for a misdemeanor under the San Diego Municipal Code. As noted above, CBRE had willingly agreed to accept responsibility for consequences if the contractors were \u201ccaught\u201d without permits, so it is clear that any remedy associated with such an infraction does little to assist workers like Johnson who are injured because of such decisions. The policy considerations behind the Privette<\/i> doctrine include fairly spreading the risk created by a contractor\u2019s work and encouraging workplace safety. \u00a0Allowing hirers to shield themselves from liability by \u201centering into an upfront agreement to `flout[]\u2019 the law\u201d at the expense of workers serves neither of these purposes. . . .<\/p>\n
Finally, the majority suggests that Johnson could have prevented his own injury by using his hot stick or meter to test the wire that ultimately caused his injuries. But the standard for determining liability in this context is also not simply who had the last opportunity to avoid the accident. Rather, absent summary judgment, a jury would be entitled to allocate fault across all relevant parties.<\/p>\n<\/blockquote>\n
That\u2019s an awfully long quote I know, but one I thought worth quoting verbatim. In short, what Justice Kelety is saying from a technical perspective is that there were triable issues of material fact as to whether PRI and CBRE exercised retained control over the property by directing Crew not to obtain permits, and that from an equitable perspective, shouldn\u2019t PRI and CBRE be responsible for directing Crew not to obtain permits, and in doing so, breaking the law.<\/p>\n
I think it\u2019s a compelling argument.<\/p>\n
Conclusion<\/h3>\n
The most straightforward take-away from the case is that a written contract is not necessary for a landowner to argue application of the Privette<\/em> doctrine. The less straight-forward take away is that a landowner does not exercise retained control under the Hooker<\/em> exception to Privette<\/em> doctrine unless the landowner expressly retains such control, and even if a landlord can be said to have impliedly retained control under the Hooker<\/em> exception, courts will weigh that control against the ability of the injured party to take precautionary measures that would have prevented his or her injury in the first place.<\/p>\nIf you\u2019ve gotten this far in this rather long post let\u2019s end it with something \u201cEasy.\u201d<\/p>\n